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Luck of the Draw for Asylum Seekers in Europe: Why the Common European Asylum System is a Breach of Justice and why a Third Phase of Amendments is Required

Sabrina Camboulives

In 2015, approximately 1.3 million refugees crossed into Europe in hopes of seeking asylum.[1] They arrived by sea and also crossed devastated lands.[2] The majority of the refugees in 2015 hailed from Syria, Afghanistan, and Iraq—war-torn countries whose violence has spurred an exodus to the proverbial Promised Land.[3] But is Europe indeed a continent that will equitably cater to each of these refugees? It has certainly tried. But it has certainly failed, as well.

Vermont Food Access and the “Right to Food”: Using the Human Right to Food to Address Hunger in Vermont

K. Heather Devine

The greatest health risk in the world today is hunger.[1] One out of nine people in the world do not get enough to eat—meaning they do not get enough calories, nutrients, or both.[2] Hunger and malnutrition threaten global health at a greater rate than AIDS, malaria, and tuberculosis combined.[3]

Hunger is not restricted to developing nations. Fourteen percent of United States households are food insecure—they cannot consistently access enough food for their households.[4] Closer to home, nearly 80,000 Vermonters, more than 20,000 of whom are children, are food insecure.[5] More than a third of Vermonters report they cannot afford to buy nutritious food, or they cannot buy enough food.[6]

Building an Alternative Jurisprudence for the Earth: The International Rights of Nature Tribunal

Michelle Maloney

In January 2014, members of the civil society network, Global Alliance for the Rights of Nature, held the world’s first International Tribunal for the Rights of Nature and Mother Earth (International Tribunal) in Quito, Ecuador. Since that time, the International Tribunal has met in Lima, Peru and Paris, France in parallel with the Conference of Parties for UN climate change negotiations, and Regional Chambers of the International Tribunal have been held in the United States and Australia.[1] Given that the International Tribunal has emerged from civil society rather than state-centered international law, and given that countries like Australia and the United States do not recognize, in State or Federal law, the intrinsic rights of plants, animals, or ecosystems to exist, what possible benefits do Rights of Nature Tribunals offer the natural world, and what impact can they have on the current legal system?

In this paper, I outline the creation and ongoing hearings of the International Tribunal and its Regional Chambers and provide an overview of Earth jurisprudence, the emerging theory of Earth-centered law and governance from which the Tribunals have emerged. I then contextualize the Rights of Nature Tribunals within the phenomenon of peoples’ tribunals during the twentieth and twenty-first centuries. I suggest that like many “peoples’ tribunals” before them, Rights of Nature Tribunals provide a powerful voice for civil society concerns and create an alternative narrative to that offered by western legal systems regarding environmental destruction. They also have the potential to play a role in transforming existing law and offer a welcome, cathartic contribution to the burgeoning field of Earth jurisprudence.

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[1] International Rights of Nature Tribunal, Global Alliance for Rts. Nature, http://therightsofnature.org/rights-of-nature-tribunal (last visited Nov. 23, 2016).

In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort

Rodrigo M. Caruço

American military criminal law does not often receive much attention outside the military and its law journals. But for the first time in over three decades, Congress will debate sweeping reforms to the United States military’s legal system proposed by the Department of Defense (DoD) that, if enacted, would further civilianize the military’s criminal code.[1] Just a few years ago, the acclaimed documentary The Invisible War brought the issue of sexual assault in the U.S. military to the forefront of national attention.[2] This film prompted sustained attacks by certain members of Congress regarding how the military prosecutes sexual assault cases, as well as the creation of numerous panels to study different aspects of the military’s approach to sexual assault investigation and prosecution.[3] On its own initiative, the DoD took a broader view and initiated a comprehensive review of the entire military legal system.[4] The result of this review is the DoD-proposed Military Justice Act of 2016, a wide-ranging proposal that substantially civilianizes a legal system already radically civilianized compared to its original enactment in 1775.[5] However, one institution critical to the military’s legal system will escape all scrutiny by both Congress and the DoD—its highest court, the United States Court of Appeals for the Armed Forces (CAAF). This article closes that gap.

Though an Article I court, CAAF is an independent judicial body.[6] Its budget flows through the DoD, but Congress has made it clear that CAAF is located within the DoD “for administrative purposes only . . . .”[7] Like all judicial bodies, it should benefit from ongoing scrutiny. Its early judges agreed and invited such scrutiny.[8] Though the military services law review journals and numerous civilian journals publish works analyzing specific aspects of military law, few, if any, include structural analyses of the military’s appellate institutions generally, and CAAF specifically.[9] This type of study has not occurred since the 1970s.[10] Thus, CAAF, and consequently military law, has evolved over the last 50 or so years without much scrutiny of its role within the military justice system and whether its conduct is consistent with its role. No comprehensive understanding of the military justice system is complete without a better understanding of its highest court.

This article attempts to further the understanding of CAAF’s role in the military justice system by examining CAAF’s effectiveness as the court of last resort within this system. This is accomplished by answering a series of questions. First, what is a court of last resort? Second, is CAAF viewed as a court of last resort in the military judicial hierarchy, or is it viewed as the first real intermediate appellate court, with the service courts acting as mere reviewing agencies? Third, if CAAF is viewed as a court of last resort, does it act like one?

This article concludes that CAAF is a court of last resort that, far too often, acts as an intermediate error-correction court. This conclusion raises both concerns and opportunities for a legal system facing ongoing scrutiny over its legitimacy. Each of the questions presented above are answered in order. Part I introduces the role of a court of last resort in a judicial system. Courts of last resort in a two-tiered system primarily focus on declaring what the law is, not error correction. This role is concerned with the development of the law. Error correction is the primary task of intermediate courts.[11] Part II turns the focus to the perceptions of CAAF, perceptions by both the Supreme Court of the United States (Court) and CAAF itself. Even during periods in which the Court expressed grave concern over the legitimacy and competency of the military justice system, it has always viewed CAAF as the court of last resort within that system.[12] Likewise, CAAF has always asserted itself as the court of last resort in the military justice system.[13] Though CAAF expressed this view less in recent years, it has never retreated from its earlier declarations that it was the military’s supreme court.[14]

Part III begins the inquiry into whether CAAF acts like a court of last resort describing the methodology used to obtain, review, and classify the relevant data. The sample size consisted of each published decision from four select terms: 1951–52, 1968–69, 1994–95, and 2014–15. The first three selected terms followed the enactment of legislation that specifically intended to clarify CAAF’s status as an independent and important federal court. Presumptively, these terms transpired when CAAF was most aware of its enhanced prestige. The 2014–15 term represents CAAF’s most recent full term, thus presenting the opportunity to examine its recent conduct. Based on the criteria established in Part I, each decision in these terms was given one of ten codes to classify it as either an error correction decision or a declaration of law. Nine of the codes mark the nine bases for granting review common amongst courts of last resort. The tenth code marks the decision as one of error correction. In addition to the first three terms, the Court’s 2014–15 term was reviewed and coded for validation. Proper coding should result in a high total number, indicating more declaration decisions by the Court.

Part IV analyzes the results of this examination. It concludes that each term contained an extraordinary number of error correction decisions, at times making up nearly 90% of all decisions in a given term. Furthermore, when CAAF does issue a law declaration decision, thus acting as a court of last resort, it often does not frame the issues or address them in a manner one would expect from such a court. The discussion in Part IV offers some initial potential explanations, which ultimately narrow down the question to whether CAAF understands its role, and if it is properly served by its lower courts and appellate counsel. Part V offers a procedural and substantive framework for approaching petitions for review and subsequent decisions based on the available data. This includes suggesting CAAF make clear when it is conducting error correction and when it is conducting law declaration—and why the distinction is important. Finally, this article concludes with a call for examination of the historically high level of error correction decisions issued by CAAF.

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[1] See, e.g., Military Justice Improvement Act of 2013, S. 967, 113 Cong. (2013) (providing that prosecution determinations in sexual assault cases cannot be made by commanding officers).

[2] The Invisible War (Chain Camera Pictures 2012).   

[3] Senator Kristin Gillibrand, D-NY, first introduced the Military Justice Improvement Act of 2013, which sought to remove the authority to decide whether to prosecute sexual assault cases from military commanders and place that authority in senior attorneys outside the chain of command. S. 967. Sen. Gillibrand’s bill did not make it out of committee, but the substantial interest she generated had an impact. The subsequent National Defense Authorization Act (NDAA) created two panels focused on the prosecution of sexual assault cases. National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, § 576, 126 Stat. 1632, 1758–62 (2013). The charter of the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel) directed its membership to review judicial proceedings in such cases for the purpose of gathering statistics, determining trends, and making recommendations on improving military judicial proceedings. The Judicial Proceedings Since Fiscal Year 2012 Amendments Panel, Charter 1–3 (2012). In addition, the charter of the Response Systems to Adult Sexual Assault Crimes Panel (Response Systems Panel) directed its members to investigate “the systems used to investigate, prosecute, and adjudicate . . . .” sexual assault and related offenses. Response Sys. to Adult Sexual Assault Crimes Panel, Charter 1 (2013). Part of this directive included investigating whether military commanders should retain their authority in the military legal system, known as the military justice system. Id. at 1. The panel concluded they should. Carl Levin, et al., Report of the Response Systems to Adult Sexual Assault Crime Panel 6–7, 22–23, 36–37, 161–71, 173–74 (2014). Partly in response, Sen. Gillibrand re-introduced the Military Justice Improvement Act. Military Justice Improvement Act of 2014, S. 2992, 113th Cong. (2014). It fell a few votes short in a cloture vote, 55-45. On the Cloture Motion S. 1752, GovTrack, https://www.govtrack.us/congress/votes/113-2014/s59 (last visited Nov. 22, 2016).

[4] During the same period that the NDAA directed the establishment of the Judicial Proceedings Panel and the Response Systems Panel, the DoD established the Military Justice Review Group (MJRG) to perform a comprehensive review of the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial (MCM), and the applicable service regulations. Memorandum from the Secretary of Defense on a Comprehensive Review of the Uniform Code of Military Justice to Secretaries of the Military Departments, et al. (Oct. 18, 2013), http://www.dod.gov/dodgc/images/mjrg_secdef_memo.pdf. The last such review occurred in 1983, with many piecemeal amendments since then. Id. The MJRG conducted hearings and received information for two years; its proposals then underwent approximately a month of internal DoD review. See Military Justice Review Group, Dep’t of Defense, http://www.dod.gov/dodgc/mjrg.html (last visited Nov. 22, 2016) (providing documents related to the DoD’s review of the military justice system). Subsequently, the DoD proposed the Military Justice Act of 2016 on December 28, 2015, based on the MJRG’s initial report. Press Release, U.S. Dep’t of Def., Department of Defense Forwards to Congress Proposed Changes to the Uniform Code of Military Justice (Dec. 28, 2015), http://www.defense.gov/News/News-Releases/News-Release-View/Article/638095/department-of-defense-forwards-to-congress-proposed-changes-to-the-uniform-code.

[5] Bryan Koenig, DOD Proposes ‘First Comprehensive’ UCMJ Update in 30 Years, Law360 (Jan. 4, 2016), http://www.law360.com/articles/742081/dod-proposes-first-comprehensive-ucmj-update-in-30-years.

[6] In its report, the MJRG stated that “[i]n view of the judicial independence of the Court, the Department of Defense, as a matter of policy, typically has deferred to the Court with respect to initiating any legislative proposal that might be necessary in the interests of judicial administration.” Military Justice Review Group, Report of the Military Justice Review Group, Part: 1: UCMJ Recommendations 1020 (Dec. 22, 2015), http://www.dod.mil/dodgc/images/report_part1.pdf.

[7] 10 U.S.C. § 941 (2012).

[8] Robert E. Quinn, The Court’s Responsibility, 6 Vand. L. Rev. 161, 162 (1953). Chief Judge Quinn eagerly welcomed scrutiny: “It is my hope that the bar, individually and through its legal journals, will follow closely the work of this Court. They can perform a most valuable function in weighing individual cases against the dichotomatic concept of military justice and tell the public, the services and us, the judges, whether we are performing properly our task of enunciating principles worthy of existence in this relatively new field of law.” Id.

[9] See, e.g., Eugene R. Fidell, Is There a Crisis in Military Appellate Justice?, 12 Roger Williams U. L. Rev. 820, 820 (2007) (“The highest court of the jurisdiction — The United States Court of Appeals for the Armed Forces — is turning out careful, scholarly opinions that are easily on par with the work of the geographical circuits.”); Jonathan Lurie, Presidential Preferences and Aspiring Appointees: Selections to the U.S. Court of Military Appeals 1951-1968, 29 Wake Forest L. Rev. 521 (1994) (exploring the politicized nature of presidential appointments to the U.S. Court of Military Appeals); Scott L. Silliman, The Supreme Court and Its Impact on the Court of Military Appeals, 18 A.F. L. Rev. 81, 82 (1976) (considering the Court of Military Appeals’ status within the military justice system).

[10] See, e.g., Daniel H. Benson, The United States Court of Military Appeals, 3 Tex. Tech L. Rev. 1, 2 (1971) (describing the structure of CAAF); John S. Cooke, The United States Court of Military Appeals, 1975-1977: Judicializing the Military Justice System, 76 Mil. L. Rev. 43, 44 (1977) (discussing the effects of transforming the military justice system during the late 1970s); John T. Willis, The United States Court of Military Appeals: Its Origin, Operation and Future, 55 Mil. L. Rev. 39 (1972) (providing a history of the Court of Military Appeals and its role); John T. Willis, The Constitution, The United States Court of Military Appeals and the Future, 57 Mil. L. Rev. 27, 27 (1972) (examining the decisions and structure of the Court of Military Appeals), John T. Willis, The United States Court of Military Appeals – “Born Again”, 52 Ind. L.J. 151, 153 (1976) (discussing precedent-breaking decisions, supervisory review and civilianization by the Court of Military Appeals).

[11] To be fair, there is some discussion that this distinction is not so clear; courts of last resort and intermediate courts routinely engage in a two-way communication in the law development function. See, e.g., Doni Gewirtzman, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, 61 Am. U. L. Rev. 457, 462, 464 (2012) (arguing the circuit courts’ role is to maintain stability and help evolve the judicial system); Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 7–8 (1994) (comparing and contrasting two models of behavior in inferior courts, namely (1) deference to existing superior court precedents and (2) predictions of future superior court rulings). However, this article structures the roles of each level in accordance with the American Bar Association’s Standards Relating to Court Organization. See Gerald B. Cope, Jr., Discretionary Review of the Decisions of Intermediate Appellate Courts: A Comparison of Florida’s System with Those of the Other States and the Federal System, 45 Fla. L. Rev. 21, 27 (1993) (citing Standards Relating to Court Org. § 1.13 commentary at 39–40 (1990)).

[12] Silliman, supra note 9, at 82.

[13] Id. at 89–91.

[14] Id. at 91.

Balancing the Fishes’ Scales: Tribal, State, and Federal Interests in Fishing Rights and Water Quality in Maine

Patrick Marass

The state of Maine has a complicated and often adversarial legal relationship with the federally recognized Native American (Indian) Tribes in the state.[1] Perhaps the most contentious legal relationship presently pertains to Maine’s authority to regulate water resources on Indian territories and lands (Indian lands).[2] At their core, legal conflicts often involve disputes over power, money, respect, or any combination of these elements.[3] What makes conflicts between states and Native American tribes so complex, and in this particular case volatile, is that the legal issues often involve clashes of all three of these elements.[4] The legal framework for the current water resource dispute traces back to a series of state and federal laws setting aside reservation and trust land for the Tribes in the 1980s and 1990s, collectively known as the Settlement Acts.[5] The Tribes’ lack of bargaining power during these settlements arguably resulted in a jurisdictionally oppressive framework for the protection of tribal natural resources.[6] The most recent legal conflict erupted in February 2015, and juxtaposes Maine’s right to regulate water quality standards (WQS) against the Tribes’ right to fish for sustenance on their lands.[7] The emotional responses ignited by this conflict illuminate why a comprehensive approach to settling the disputes between Maine its Tribes is needed.

Bringing a Lamb to Slaughter: How Family Law Attorneys Unknowingly Lead Clients to Financial Disaster in the Negotiation of a Divorce Stipulation

Jennifer L. Bjurling

Fitzgerald v. Fitzgerald. May this case be branded on the mind of every family law attorney. The husband, Thomas, was the plaintiff, and in conformity with the typical situation, the debtor in bankruptcy. The wife, Sandra, was the defendant in the divorce complaint and creditor-spouse in bankruptcy. The parties negotiated a property settlement. The court incorporated the stipulation into a divorce decree. The stipulation required the husband to make an equalizing payment to the wife. He did not. Instead, only one month after the divorce decree, the husband filed for bankruptcy. Though she entered her appearance as a creditor in bankruptcy court, the wife chose to seek a remedy in Vermont state court. She did not object to the discharge of the husband’s debt to her in bankruptcy court. Rather, she filed a Rule 60(b) motion for fraud and misrepresentation with the family court. Prior to the Rule 60(b) hearing, the husband successfully attained a discharge of the equalizing payment to wife in the bankruptcy case. Sandra’s slaughter was complete.

The trial court dismissed the wife’s 60(b) motion as barred by the husband’s discharge in bankruptcy. On appeal, the Vermont Supreme Court held that Title 11 U.S.C. § 523(c) provides that a creditor must pursue an exception from discharge for a debt based on fraud or deceit in the bankruptcy forum. Given that the wife failed to do so, the discharge of the equalizing payment granted by the bankruptcy court was “an injunction against the commencement or continuation of an action, the employment of process, or any act, to collect, recover or offset any such debt as a personal liability of the debtor, or from property of the debtor, whether or not discharge of such debt is waived . . . .” The court stated that an attempt to distinguish the reopening of the underlying judgment, pursuant to Rule 60(b), from enforcement of the discharged debt was “illusory.” The Vermont Supreme Court further held that res judicata barred the wife from re-litigating the claim; “[f]inal orders of a bankruptcy court are res judicata as to all matters that were or could have been litigated before that court.”

Though Fitzgerald was litigated in 1984, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) continues to enable a similar outcome in Chapter 13 filings. This Article aims to provide family law attorneys with a basic understanding of bankruptcy law so they might successfully negotiate and craft divorce stipulations which are not vulnerable to discharge in bankruptcy. This Article further strives to enumerate specific strategies to achieve that end.

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The “Brave Little State of Vermont” Can Overcome Citizens United All By Itself

James Marc Leas 

Vermont can take action now to restrain the corrupting effects of money in elections without running afoul of Citizens United. With a result joined by all nine Justices, in Nevada Commission on Ethics v. Carrigan, the Supreme Court approved legislative conflict of interest recusal as a method to prevent corruption.

Recusal takes a cut at the corruption problem in a manner that is opposite to the way the old limits on election spending attempted. Vermont’s own reasonable contribution limits were declared unconstitutional by the United States Supreme Court in Randall v. Sorrell based on the notion that money is protected speech. The United States Supreme Court initiated this line of decisions with Buckley v. Valeo, continuing through Citizens United and more recent cases that take its logic even further. Recusal rules straightforwardly address the heart of corruption in democracy while entirely avoiding any entanglement in the convoluted and mostly improvised First Amendment reasoning of those decisions.

Outrage over Citizens United was initially directed toward advocacy of a constitutional amendment to permit restoration of election spending restrictions. However, the Supreme Court’s decision in Nevada Commission on Ethics means that updating our recusal rules provides a far easier and faster way for Vermont to begin to stamp out the corrupting influence of money on elections.

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Bad Things Happened: Metaphorical Fingerprints, Constellations of Evidence, and “Guilt for Association”

Lauren Gazzola 

In November 2014, the United States Supreme Court denied certiorari in Blum v. Holder, a lawsuit brought by the Center for Constitutional Rights (CCR) challenging the federal Animal Enterprise Terrorism Act (AETA) as a violation of the First Amendment. The plaintiffs were five
animal rights activists with long histories of participating in peaceful protests and nonviolent civil disobedience. They argued that the AETA is
overbroad, vague, and discriminatory on the basis of content and viewpoint.

The first section of the AETA punishes “caus[ing] the loss of any real or personal property . . . used by an animal enterprise.” Plaintiffs argued
that the statute makes no distinction between loss caused by unlawful or unprotected activity, such as arson and other property damage, and loss
caused by boycotts and other constitutionally protected activity. The briefing throughout the case largely debated whether personal property
includes profits, as distinguished from physical property. If it does, this lends credence to plaintiffs’ claim that the plain language of the AETA proscribes more than vandalism, theft, and other harm to tangible property, and further legitimizes their alleged chill from documenting agricultural conditions, organizing lawful protests, speaking at public events, and other protected expression aimed at harming the profits of animal enterprises.

One plaintiff alleged a distinct chill. She argued the AETA dissuaded her from engaging in a course of conduct that included both advocacy of illegal tactics and protests against specific individuals because, while each of these actions is constitutionally protected on its own, together they violate the AETA. These allegations were directed, in particular, at § (a)(2)(B) of the statute, which punishes “intentionally plac[ing] a person in reasonable fear of [death or bodily injury] . . . by a course of conduct involving threats, . . . harassment, or intimidation . . . .”

This plaintiff had good reason to fear prosecution under this section of the law. Five years before Blum was filed, in United States v. Fullmer, she had been convicted of conspiring to violate the AETA’s predecessor statute, the Animal Enterprise Protection Act (AEPA), for precisely this conduct: speech in the course of a campaign that included both advocacy of illegal tactics and protests against individuals. In Fullmer, this entire multi-year campaign was treated by the Third Circuit Court of Appeals as an illegal conspiracy to violate the AEPA. Additionally, the Third Circuit ruled that protest chants used by this Blum plaintiff, then a Fullmer defendant, were unprotected true threats—despite the fact that a Massachusetts court had previously ruled that the exact same chants were protected by the First Amendment and dismissed state indictments against this plaintiff. For her conviction under the AEPA and related charges, this Blum plaintiff was sentenced to 52 months in federal prison, 3 years of probation, and ordered to pay $1,000,001.00, jointly and severally with her codefendants, in restitution. Thus, in Blum, this plaintiff alleged that her speech had been chilled both because she was uncertain whether the speech she wished to engage in would be deemed protected and because the AETA unconstitutionally discriminates on the basis of content and viewpoint within the unprotected category of true threats.

That plaintiff in Blum and defendant in Fullmer was me.

There has been limited scholarly treatment of the grave First Amendment dangers raised by the Third Circuit’s affirming my and my codefendants’ (collectively, the SHAC 7) convictions. Though a smattering of law review articles have discussed the case, none has thoroughly probed the depths of the First Amendment problems in Fullmer—namely: (1) the Third Circuit’s reckless use of conspiracy to criminalize an entire protest campaign; (2) the court’s use of a protest campaign wherein some individuals committed illegal acts as context to deny First Amendment protection to nonthreatening speech and expressive activity; and, (3) an extensive factual record that belies many of the Third Circuit’s conclusions. Meanwhile, Fullmer has not gone quiet. Indeed, in Blum both the district and appellate courts repeated Fullmer’s sweeping and unsupported claims that the SHAC 7 defendants’ speech was evidence of illegal activity.

Almost a century ago, during the first Red Scare, the fervor of war and anti-socialist panic led a nation to prosecute hundreds of anti-war agitators based on nothing more than their words and associations—and the Supreme Court to (in)famously affirm the convictions it reviewed. Justice Brandeis and Justice Holmes are lauded for their (eventual) bold dissents from this line of cases and for articulating principles that ultimately prevailed and created robust protections for speech. Who will dissent from the Green Scare?

Activists and lawyers have been sounding alarms and defending against repression of the animal rights and environmental movements for over a decade. But they have been almost completely ignored by the scholarly First Amendment community. Despite the seriousness of the charges in Fullmer—terrorism—the nature of the evidence against the defendants—speech and expressive activity—and the gravity of the consequences—multi-year prison sentences and excessive financial lawyers, activists, and a journalist have written the few law review articles addressing the case.  Meanwhile, industries and legislatures continue working to criminalize animal rights activism in an effort to silence a movement that challenges the inviolability of human dominance over, and violence against, all other species on Earth.

In March 2015, a federal court rejected another First Amendment challenge to the Animal Enterprise Terrorism Act. In United States v. Johnson, defense attorneys, including the Center for Constitutional Rights, moved to dismiss animal enterprise terrorism charges against two activists alleged to have released, and conspired to release, thousands of mink and foxes from fur farms in rural Illinois. The motion to dismiss argued that the AETA is unconstitutionally vague and overbroad, and that charging the defendants as terrorists for allegedly freeing animals was an unconstitutional denial of substantive due process. In July 2015, two more activists were indicted on AETA charges for allegedly freeing animals from fur farms and vandalizing property. As courts allow the AETA to stand, the way that such designer legislation was used in Fullmer is instructive. It reveals the reality of what activists face and fear due to the very existence of the AETA.

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Fulfilling the Human Right to Food and a Healthy Environment: Is it Time for an Agroecological and Aquaecological Revolution?

Anastasia Telesetsky 

The start of the Green Revolution was a time of optimism. Fueled by chemical fertilizers, new hybrid seeds, and a sense of moral righteousness, the Green Revolution increased field productivity through the magic of science and innovation. Yet this short-term miracle of technology has failed to deliver a long-term solution to malnutrition and food shortages. Concerned with feeding the largely disenfranchised and hungry populations of the Global South, the makers of the Green Revolution failed to contemplate that though their interventions would provide semi-reliable harvests for some of the poorest individuals in the world, they would also transform human agriculture into an industry largely defined by chemical dependency and ultimately diminishing yields Today, 40% of the 437 million farms in developing states that feed approximately two-thirds of the human population are dependent on Green Revolution technologies. In practice, the Green Revolution simultaneously succeeded and failed. It succeeded for the earliest generations or poor communities who benefited from the extra crop yields, but it is failing the current generation that is left with a legacy of contaminated soils and waters.

The continued need to achieve the high yields associated with the Green Revolution becomes increasingly important when contemplating current rising global demographic trends. The United Nations Food and Agricultural Organization (FAO) predicts that a 70% increase in food may be needed to feed the increasing population. In response to increasing population projections, States have chosen to invest in known conventional food security strategies rather than explore less-tested strategies that might achieve both food security and environmental security. For example, the market for nitrogen fertilizer, a key input for the Green Revolution, is predicted to reach an all-time global production high of 200.5 million tons in 2018—24% more than the global usage in 2008. Much of this usage is concentrated in states with large populations, such as China, where the rate of fertilizer application has increased four-fold over about three decades. Applying large amounts of agricultural fertilizer to achieve industrial-level crop yields has profound implications for the environment, including substantial contributions to both global greenhouse gas emissions and contaminated water tables.

This Article asks whether states in pursuit of cheap outputs of food to feed burgeoning populations should continue to pursue status quo domestic food security strategies that are likely to threaten long-term environmental security. More production promotes immediate food security, but governments also have human rights obligations, including the duty to respect, promote, and fulfill both the “right to food” and the “right to a clean and healthy environment.” Existing industrial food production strategies pose legitimate threats to achieving long-term food security objectives. Part I of this Article reviews the impact of industrial food production on environmental resources. Part II explores the intersection between the human right to food and the human right to a clean and healthy environment. Part III proposes additional legal interventions in support of strategies for ensuring the full realization of both the right to food and the right to a clean and healthy environment.

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Banning Metal Mining in Guatemala

Raquel Aldana & Randall S. Abate 

Metal mining is not big business in Guatemala. It generates less than one percent of the country’s gross national product and employs less than one percent of the official workforce in the country. The metal mining industry has also been in decline since 2012, and a significant subpart of the industry will disappear completely in a matter of decades when all of the gold, silver, and other metals have been extracted.

For such a small industry, metal mining represents a giant problem for Guatemala. Metal mining has generated chaos in the country and provoked ire among many within and beyond its borders. Metal mining in Guatemala is controversial for significant reasons. First, at an alarmingly quick pace, metal mining is destroying much of the country’s beautiful environmental resources. Second, this destruction is occurring largely without the consent of the affected communities—both indigenous and non-indigenous. For these communities, the few benefits—mostly in the form of jobs with higher wages for some of the local residents—pale in comparison to the short-term and long-term harms. In the short term, residents in metal mining communities are disturbed by noise; sickened by contamination; impoverished by reduced water supply and food production; divided by conflict even among friends and family; and criminalized and physically harmed during protests. In the long term, water depletion and contamination linger, mountains and landscapes disappear, and the jobs and monies that mines brought dissipate. The affected communities—and the entire country as a result—are left with an even bleaker future than prior to exploitation, literally and figuratively.

These environmental and human rights harms alone justify a rejection of the industry in Guatemala. The disdain for metal mining, however, lies exactly in the reasons for its presence in the country. Why is an industry that represents such an insignificant economic investment and with such destructive characteristics allowed to operate in the country? The answer is cynical but tragically true. Metal mining makes a great deal of investment sense to the foreign investors and shareholders and to the economic elite and self-interested politicians who profit from it. In turn, as a struggling democracy with weak laws and institutions, but strongly favorable investment laws and practices, Guatemala is the ideal host for the continuation of corporate practices that are senseless and destructive. 

This same assessment of metal mining in Guatemala applies across the region and globally, particularly in developing nations with similar democratic and social struggles. It also applies to several other types of industries that extract natural resources or cheap labor for global consumption. Unlike Guatemala, however, some of these nations are stepping back and instituting important reforms to limit or ban certain types of mining. There are important lessons in these reforms for Guatemala.

This Article proposes recommendations for managing Guatemala’s metal mining problem. It proceeds from the premise that metal mining is a bad investment for Guatemala, at least in the short term. Metal mining is never a sustainable practice for any country because metal is an exhaustible and non-renewable natural resource and its extraction is inherently toxic and destructive. There is a legitimate argument that metal mining may be necessary for development and that it could be done in ways that significantly reduce the harms to the environment and communities. This Article does not address whether or how Guatemala might choose to engage in metal mining in the future. Rather, it asserts that Guatemala is ill prepared to implement a metal mining regime that makes sense for the country at this time. Guatemala is now grappling—in good ways—with significant and visible democratic problems. For the first time in the near decade of the United Nations Commission against Impunity’s (CICIG) operation in Guatemala, its investigations are finally exposing the shameful and cynical acts of corrupt politicians. Not a single Guatemalan is surprised by the dirty secrets the CICIG’s wiretaps and secret recordings revealed. Several high-level officials resigned following the revelations, including the Vice President and the President who now face criminal charges for their acts of corruption. This alone represents remarkable progress for Guatemala. 

These potentially monumental transitions in Guatemala, however, do not guarantee real and sustained reforms in the country. Today, nearly 20 years after the signing of an ambitious peace agenda, Guatemala is nowhere near a strong enough democracy as it needs to be to manage metal mining in order to minimize harms and maximize benefits for its citizens. Much needs to happen first, including electoral reform, eradication of deep inequality, greater transparency in public spending, and tax and social spending reforms. This Article addresses the primary concerns that pertain to mining: reforming the 1997 Mining Law; the need to regulate water and the consultative process; and the need to improve transparency in tax collection, public spending, and social investment, particularly as it relates to the mining industry. These reforms must occur in tandem with the broader and systemic reforms already mentioned if metal mining is to be successful. Until then, Guatemala should consider banning metal mining in the country. This course would not be unchartered territory in the region. Other nations, with Costa Rica as one of the best examples, have paved the way. 

Banning metal mining in Guatemala, even if temporarily, will likely face fierce opposition from investors and potentially from Guatemala’s important trading partners. Guatemalans would be right to be concerned about two possible negative consequences from the decision to ban or limit metal mining: (1) companies already holding exploration and exploitation licenses could sue in international tribunals or foreign courts for millions alleging expropriation; and (2) Guatemala could damage its relationship with Canada, the United States, and other potential trading partners and international economic institutions. This Article addresses strategies and defenses for banning mining in Guatemala in response to expropriation claims in international tribunals. Also, it proposes standards and norms that arbitrators should apply to resolve these claims. As to the second concern, the potential impacts on trade and investment might be exaggerated and overstated. Guatemala nonetheless should explore alternatives for sustainable development that would be better for the country in the long term. Costa Rica’s ecotourism industry serves as a model for Guatemala in this regard. 

Part I of this Article explains the nature and scope of the metal mining industry in Guatemala. It also examines the environmental, health, property, and social impacts of metal mining and discusses the unbalanced costs and harms of the industry under Guatemala’s status quo. Part II documents the challenges and gaps in the existing domestic and international legal frameworks that attempt to regulate metal mining activities in Guatemala. Part III proposes an incremental model for Guatemala to address its metal mining problem. First, this Article recommends that Guatemala exercise its sovereign right to adopt a law banning all future metal mining concessions. Second, Guatemala should rely on existing domestic laws to close the mines in order to mitigate the substantial damages resulting from these activities. Under either approach, Guatemala is likely to face investor liability in the millions, and perhaps lose future investment in the country. This Article offers Guatemala suggestions for defending and mitigating these costs by relying on comparative studies of similar actions taken by Costa Rica and El Salvador.

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